A History of Government Contracting

Anyone who truly would master any field of law must acquire a knowledge and appreciation of its history. “When the perspective of time has lengthened,” Winston S. Churchill reminds us, “all stands in a different setting. There is a new proportion. There is another scale of values. History with its flickering lamp stumbles along the trail of the past, trying to reconstruct its scenes, to revive its echoes, and kindle with pale gleams the passion of former days.”1 A knowledge of history offers perspectives by which to confirm or question judgments about actions to be taken in the present and future.

And so it is that we who deal with public contracting law are benefitted enormously by the splendid contribution to the government contracting field offered by James F. Nagle’s History of Government Contracting. First published in 1999, and updated in 2005, the History’s third edition was just published in 2012. With over 400 pages of text, over 1000 footnotes and a comprehensive bibliographical essay of hundreds of secondary sources in this two volume work, the History’s third edition is sure to remain the preeminent historical source in this field. It is the best and most authoritative work of its kind, and is a “must have” for all lawyers who practice in this field.

Beginning with the French and Indian War of 1755-1763 and taking us through the Revolutionary War, Civil War, World War I, World War II, and down to the current 21st Century Wars on Terror, Jim Nagle has admirably traced in broad perspective and historical context procurement procedural changes, agency formations and reorganizations, and technological innovations, as well as the consequences of scandals, that have contributed to what the field of government contracting looks like today. Thus we learn of the origins of historical concerns that prompted adoption of various procurement methods, types of contracts and clauses – and of the always constant tension between efficiency and expediency on the one hand and accountability and competition on the other.

All too often procurement procedure changes have resulted from demands of technological advances or from discovery of financial scandals arising out of human error or outright fraud in administration of large programs and payment of large sums of money to contractors who haven’t performed properly. Thus we learn, among others, of the Union General McKistry scandal and court martial in the early Civil War that lead to Congressional enactment of the False Claims Act. The war on procurement “fraud, waste and abuse” has been waged cyclically for almost two centuries. As Jim writes in his conclusion to the third edition:

"My fear [as expressed at the end of the second edition was] that laws cannot change human nature. Some contracting officer somewhere will make a stupid or corrupt decision. Some contractor somewhere will pounce on the situation to defraud the government. Headlines will blare; Congress will overreact; and the cycle of government contracting reforms will continue. [Since the second edition was published in 2005] that has happened in spades."

Thus past is prologue.

In writing this history, Jim Nagle is the one lawyer in the United States most ideally suited to the task at hand. Jim has been described by The Construction Lawyer, the Journal of the American Bar Association Forum on the Construction Industry, as a “giant” of this field. And rightly so. Jim has almost forty years of practical experience beginning with his service as an Army JAG officer litigating government contract cases and continuing as a partner in the 118 year-old Seattle law firm of Oles Morrison Rinker & Baker LLP. Jim also has a prodigious academic and publishing background, beginning with his earning of an SJD degree (the top legal degree conferred) in government contract law from George Washington University Law School where he studied under the tutelage of Professor Ralph Nash. Jim was selected by Professor Nash following the death of his long-time colleague, Professor John Cibinic, to collaborate on the 2006 updating the fourth edition of Nash, Cibinic and Nagle, Administration of Government Contracts, the most authoritative work ever written on that subject that has been cited in more than 250 court and board decisions. Jim also has authored or co-authored a number of other highly regarded scholarly works, Federal Construction Contracting (1992), Federal Procurement Regulations: Policy, Practice and Procedure (1987), and Cases and Materials on Federal Government Contracts (2d ed. 2000).

For his superb piece of work, Jim deserves our commendation and thanks. Jim’s History of Government Contracting is an extraordinary contribution to the literature in this field.

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*Philip L. Bruner is an arbitrator and mediator with JAMS (www.jamsadr.com) and JAMS International (www.jamsinternational.com), and head of JAMS Global Engineering and Construction panel of neutrals. For forty years prior, he litigated construction and government contract disputes. He is a past President and Fellow of The American College of Construction Lawyers, Fellow of the College of Commercial Arbitrators, and Co-author with Patrick J. O’Connor Jr of Bruner and O’Connor on Construction Law, the nine volume 9,000 page treatise cited In more than 200 opinions rendered by Federal and state courts.